恢复性司法视野下赔偿与量刑关系的重构

"赔偿从轻"是普遍的司法实践,但其因仅仅关注经济赔偿、脱离刑事和解的大框架而被诟病为"花钱买刑"。以恢复性司法为视角,赔偿与量刑的关系需要重构。赔偿从轻原则应当尽量创造犯罪人与被害人面对面接触的机会、应当以犯罪人充分认识到自己行为的后果为前提、应当以修复犯罪人、被害人与社区之间破损的关系为内涵,司法机关同时应关注对被害人心理健康的修复。     

Lay-Perspectives on Criminal Deviance,Goals of Punishment,and Punitivity

Empirical studies corroborate a relatively close relation between goals of sentencing and punitiveness. However, it is not clear what aspects of sentencing goals motivate harsh punishment. This study analyzes the structure of sentencing goals and scrutinizes in particular whether the idea of retribution is associated with punitiveness, or whether punishment considerations from a societal perspective (macrolevel) are the source of more punitive responses. A questionnaire was mailed to a random sample drawn in Bern, Switzerland. A total of 357 persons responded to items measuring constructs including goals of sentencing, punitiveness, target of justice considerations, and perceived threat to society, after reading one of three short stories about specific crimes (fraud, physical injury, assault). Results of this study reveal a two-dimensional structure of sentencing goals. One dimension represents readiness to punish and exclude the offender socially. The other dimension refers to concerns of the victim versus the needs of the society as a whole. The analysis provides a new interpretation of sentencing goals.     

被害人参与量刑程序：现状、困境与展望

被害人参与量刑程序是量刑程序改革的重要组成部分,对于化解社会矛盾、促进社会和谐具有重要意义。从当前试行效果看,这一制度设计在实践中遇到一些困境。2012年修改后的刑事诉讼法为被害人参与量刑程序、发表量刑意见预留了足够空间。未来应区分＂被害人影响陈述＂与被害人的量刑意见,处理好被害人的量刑意见与检察机关的量刑建议的关系,进一步完善具体的制度设计。     

Patterns of discrimination in assessments of the death penalty: The case of Louisiana

This work contributes to a growing body of literature by analyzing patterns of capital punishment sentencing in Louisiana during the post-Furman era. The specific focus of the study was to determine whether patterns of discrimination by race continue to persist. A logit model was utilized with data consisting of 504 cases of homicide eligible for capital punishment, fifty-three of which had been assigned the death penalty. Results indicated that a pattern of discrimination by race of victim, but not by race of offender, existed, even when a number of legal and extra-legal factors were controlled. In addition, an effect for sex of the victim was noted. Another pattern found, that of capriciousness, is also discussed.     

Race and Jurors' Receptivity to Mitigation in Capital Cases: The Effect of Jurors', Defendants', and Victims' Race in Combination

This paper examines the variation in receptivity to mitigation evidence by capital jurors as it varies by the race of the juror, defendant, and victim individually and in combination. Attitudinal and racial characteristics from 865 respondents in the Capital Jury Project were used in the analysis. Using a generalized form of multiple regression, the respondent's receptivity to mitigation evidence was predicted and changes in receptivity were calculated as the race of the main trial participants (juror, defendant, and victim) were varied. Statistical controls were put in place for gender of respondent; respondent's perception of the dangerousness of the defendant, heinousness of the crime, and view of the defense attorney; respondent's formation of a premature sentencing decision; and whether the trial took place in a southern state jurisdiction. Results indicate that Black jurors in cases where a Black is charged with killing a White victim are chiefly responsible for the observed variance in receptivity to mitigation.     

Capital Jury Deliberation: Effects on Death Sentencing,Comprehension, and Discrimination

This study focused on whether and how deliberations affected the comprehension of capital penalty phase jury instructions and patterns of racially discriminatory death sentencing. Jury-eligible subjects were randomly assigned to view one of four versions of a simulated capital penalty trial in which the race of defendant (Black or White) and the race of victim (Black or White) were varied orthogonally. The participants provided their initial “straw” sentencing verdicts individually and then deliberated in simulated 4–7 person “juries.” Results indicated that deliberation created a punitive rather than lenient shift in the jurors’ death sentencing behavior, failed to improve characteristically poor instructional comprehension, did not reduce the tendency for jurors to misuse penalty phase evidence (especially, mitigation), and exacerbated the tendency among White mock jurors to sentence Black defendants to death more often than White defendants.     

Status Disparities in the Capital of Capital Punishment

Numerous studies have examined the influence of victim race on capital punishment, with a smaller number focused on victim gender. But death penalty scholars have largely ignored victim social status. Drawing on Black's (1976) multidimensional theoretical concept, the current research examines the impact of victim social status on the district attorney's decision to seek the death penalty and the jury's decision to impose a death sentence. The data include the population of cases indicted for capital murder in Harris County (Houston), Texas, from 1992 to 1999 (n=504). The findings suggest that victim social status has a robust influence on the ultimate state sanction: Death was more likely to be sought and imposed on behalf of high‐status victims who were integrated, sophisticated, conventional, and respectable. The research also has implications beyond capital punishment. Because victim social status has rarely been investigated in the broader sentencing literature, Black's concept provides a theoretical tool that could be used to address such an important omission.     

Life or death decisions

The penalty phase deliberation experiences of capital jurors guided by the “special issues” sentencing instructions were investigated. These instructions ask jurors to consider three specific issues to determine whether a defendant should receive a sentence of life imprisonment or the death penalty: whether the crime was committed deliberately; whether there is a probability that the defendant would pose a continuing threat to society; and whether the conduct of the defendant was unreasonable in light of any provocation on the part of the victim. In-depth interviews with 27 jurors explored the organization of the penalty deliberation, the topics discussed, influential factors in the decision-making process, the impact of sentencing instructions, the importance of the possibility of parole, and the stress associated with capital jury service. Jurors relied heavily on sentencing instructions to guide their deliberations and to determine their responsibilities. Future dangerousness and the possibility of parole were critical considerations in deciding between life and death. Although jurors found the capital trial to be stressful, most believed that the life or death decision should be made by jurors. Findings are discussed in light of constitutional concerns about the administration of the death penalty.     

Discrimination and Instructional Comprehension: Guided Discretion,Racial Bias,and the Death Penalty

This study links two previously unrelated lines of research: the lack of comprehension of capital penalty-phase jury instructions and discriminatory death sentencing. Jury-eligible subjects were randomly assigned to view one of four versions of a simulated capital penalty trial in which the race of defendant (Black or White) and the race of victim (Black or White) were varied orthogonally. Dependent measures included a sentencing verdict (life without the possibility of parole or the death penalty), ratings of penalty phase evidence, and a test of instructional comprehension. Results indicated that instructional comprehension was poor overall and that, although Black defendants were treated only slightly more punitively than White defendants in general, discriminatory effects were concentrated among participants whose comprehension was poorest. In addition, the use of penalty phase evidence differed as a function of race of defendant and whether the participant sentenced the defendant to life or death. The study suggest that racially biased and capricious death sentencing may be in part caused or exacerbated by the inability to comprehend penalty phase instructions.     

Revenge,Retribution, and Values: Social Attitudes and Punitive Sentencing

This study examined the pattern of relations between vengeance attitudes, right-wing authoritarianism (RWA), and social dominance orientation (SDO) using the structure of value types proposed by Schwartz (Adv Exp Soc Psychol 25:1–65, 1992). Relations between these variables and support for a variety of sentencing options, including capital punishment, were then investigated. One hundred and forty-eight students in Adelaide, South Australia, completed a Vengeance Scale (Stuckless and Goranson, J Soc Behav Pers 7:25–42, 1992), measures of RWA and SDO, the Schwartz Value Survey (1992), and a Sentencing Goals Scale. As predicted, vengeance attitudes and SDO were found to be positively related to the importance of power values and negatively related to the importance of universalism and benevolence values. Vengeance attitudes were negatively related to rehabilitation and positively related to support for retribution and incapacitation sentencing goals, while RWA was positively related to the endorsement of deterrence and incapacitation as sentencing goals. Regression analyses indicated that only RWA and vengeance attitudes were unique predictors of death penalty support. Results provide support for the suggestion that vengeance is closely associated with our notion of retributive justice.     

Victim-offender race and support for capital punishment: A factorial design approach

Existing research suggests that juries are more likely to condemn murderers to death when offenders are black victims are white. It remains to be seen, however, whether these decisions reflect broader racial prejudices in society that are imported into the jury room. If they do, then insuring equity in capital sentencing may be beyond reach. Accordingly, this study uses factorial design methodology to examine whether members of the general public are more supportive of capital punishment when asked to rate a vignette describing a murder involving a white victim and black offender as opposed to other victim-offender racial combinations. Our analyses suggest that the race of the offender, but not the victim, has a significant influence on support for capital punishment. Thus, procedural safeguards alone may be unable to eliminate racial bias in capital sentencing.     

The triumph of vengeance over retribution: the United States Supreme Court and the death penalty

In this article the author uses a review of Welsh S. White'sThe Death Penalty in the Nineties as a framework for analyzing recent trends in the United States Supreme Court's death penalty jurisprudence. Since 1976 the Supreme Court has upheld the constitutionality of capital punishment at least in part on the notion that the death penalty serves the useful social purpose of retribution. This article, however, contends that it is imperative to distinguish between retribution and vengeance as rationales for criminal punishment. Modern retributive theory calls for punishments to be guided by considerations of proportionality, fairness, and equality. Vengeance-based punishments, on the other hand, are aimed at satisfying the victim's and society's desire for retaliation and are not limited by the retributive principle that punishment must be proportionate to the severity of the crime and the moral blameworthiness of the offender. The article analyzes recent Supreme Court decisions that are not examined inThe Death Penalty in the Nineties-decisions that allow the introduction of victim-impact evidence into capital sentencing proceedings and permit the death penalty to be imposed on 16-year-old offenders, mentally retarded defendants, and those who neither kill nor intend to kill. These decisions, it is argued, demonstrate that the contemporary Court has bestowed judicial approval on vengeance as an acceptable justification for capital punishment.     

Capital Sentencing In Kentucky, 2000–2010

The current study attempts to build upon previous analyses of capital sentencing in Kentucky and other states. Using data compiled from official court records compiled by the Kentucky Department of Public Advocacy, we examined death eligible homicide cases for the years 2000–2010 for the state (N?=?359). Multivariate analysis determined that the death penalty in Kentucky was sought 3.17 times or 217 % more when the victim is female. It also found that cases featuring a black defendant and a white victim were 56 % less likely to result in a plea than cases featuring other defendant/victim racial combinations. Despite legal requirements, Kentucky fails to collect data to assess the factors that influence the seeking and imposition of the death penalty. Paper presented at the Second Annual Forum on Criminal Law Reform in the Commonwealth of Kentucky on November 15, 2013 at the University of Kentucky Law School, Lexington, KY.     

Reactions to Mandatory Sentences in Relation to the Ethnic Identity and Criminal History of the Offender

This study investigated the responses of 181 participants (87 men, 94 women), from Adelaide, South Australia, to scenarios describing mandatory sentences for perpetrators of a property offense committed in the Northern Territory, Australia. Four scenarios that were randomly distributed varied ethnic identity (White Australian, Aboriginal Australian) and criminal history (first-time offender, third-time offender). Participants completed attitude measures for both mandatory sentencing and capital punishment, a right-wing authoritarianism scale, and a scale concerned with sentencing goals (retribution, deterrence, protection of society, and rehabilitation). Results showed strong effects of attitude toward mandatory sentencing on scenario responses for variables such as perceived responsibility, deservingness, leniency, seriousness, anger and pleasure, and weaker effects of ethnic identity and criminal history. Participants were generally more sympathetic when the offender was an Aboriginal Australian. Results of a multiple regression analysis showed that attitude toward mandatory sentence was predicted by right-wing authoritarianism and by sentencing goals relating to deterrence and the protection of society.     

Proportionality in Sentencing and the Restorative Justice Paradigm: ‘Just Deserts’ for Victims and Defendants Alike?

The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’. In Australian sentencing law, proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments. This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality that is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed.     

论被害人量刑意见的提出：现状与重构

被害人量刑意见是被害人表达诉求的重要载体.被害人量刑意见的提出有助于恢复被害人的受损利益,弥补公诉权行使之不足,实现刑罚裁量的客观公正.目前我国被害人量刑意见的提出还存在一系列问题,应从提出主体、内容、时机、方式以及效力等方面对被害人量刑意见提出程序进行重构.     

A Review of Sex Disparities in the “Key Players” of the Capital Punishment Process: From Defendants to Jurors

Extralegal disparities between defendants sentenced to the death penalty and those who receive life without parole disturb even the most resolute advocates of capital punishment. Extensive bodies of research document extralegal factors influencing death penalty outcomes. Although studies largely focus on race and ethnicity, a growing body of research considers the impact of sex on the capital sentencing process. This paper reviews the extant research on the impact of the sex of the victim, defendant, attorney, juror, and judge on capital case outcomes. Women’s scarcity on death row and a previously documented “female victim effect” condemning male defendants who kill female victims, particularly for those committing crimes of sexual degradation, suggests that death row policies and their implementation chivalrously protect female defendants and victims. Conversely, a limited amount of research documents a “domestic discount,” or greater leniency for death-eligible crimes commonly victimizing women than for those victimizing acquaintances or strangers. Although opinion polls document greater support for the death penalty among men than women, juror sex inconsistently predicts sentencing outcomes in the literature. Minimal research on judge and attorney sex finds female judges more liberal in death penalty sentencing than male judges and inconclusive relationships between attorney sex and adjudication. Findings in the research on sex and death penalty outcomes support the existence of a “sex effect” and inform recommendations for future research to expand the body of literature.     

Judicial Narratives of Ideal and Deviant Victims in Judges’ Capital Sentencing Decisions

Although the Victim’s Rights Movement has led to advances for victims of crime, the use of victim impact evidence in criminal trials remains controversial due to the suspicion that such evidence enhances punitive attitudes and arbitrariness in capital sentencing outcomes. Despite a growing body of literature in this area, it remains unclear if some victims are viewed more favorably than others, particularly from the perspective of judges. The current study examines the construction of victims by judges in capital cases and how this portrayal impacts sentencing outcomes in Delaware, which vests the final capital sentencing authority in judges rather than juries. In examining this gap in the literature, we consider if judges make distinctions between ideal and deviant victims, if these distinctions are associated with victim and offender characteristics, and if the construction of victims impacts offender sentencing. Findings from this study lend support to the idea that judges describe some victims as more “worthy” than others, that victims described in ideal ways are more likely to be white and female, and that “ideal victims” are more likely to result in death sentences.     

Memorializing Miscarriages of Justice: Clemency Petitions in the Killing State

Clemency in capital cases today has become quite rare. Capital clemency has been a victim of the rejection of rehabilitation as the guiding philosophy of criminal sentencing and of the increasing politicization of issues of crime and punishment since the 1960s. Yet despite the reluctance of governors to grant clemency, despite the difficulty of rectifying miscarriages of justice through the clemency process, petitions seeking commutation or pardon in death cases still are regularly presented to chief executives. With so little chance of success, filing them may seem to be nothing more than an empty ritual. In this article, I examine clemency petitions from Texas and Virginia, and I argue that those petitions may serve another function, and take on meaning in another way. This function I label "memorialization." These pleas provide an archive of stories of law's failures, of alleged breakdowns in the legal process, of a legal process in disrepair, as well as of racial prejudice, of lives shattered by violence and neglect, of remorse, rehabilitation, and redemption. They are cultural artifacts, documents that address both governors and an indeterminate audience beyond them and that memorialize miscarriages of justice. While they reveal the importance of religion, family, and good works in American thinking about remorse, redemption, and mercy, they also should be seen as histories of the present, documenting the breakdowns and inequities in the death penalty system as well as the tragic circumstances of lives shaped and shattered by poverty, abuse, and neglect.     

论传统司法对量刑规范化的启示——以刑事被告与被害人的关系为视角

当前,量刑规范化的试点工作已在全国推开。科学确定各种常见量刑情节及其对基准刑的调节幅度,为最高法院补充、完善各种量刑情节的适用提供参考,是法学理论界和司法实务部门的重要责任。本文以刑事被告与被害人的关系为视角,从中国传统司法的成功经验中,梳理出三大原则,即亲属伦理原则、责任分配原则、补偿原则,发现其对合情合理合法地处理各类刑事案件,实现量刑公正,树立司法公信力,有着重要的指导意义,是祖先留给我们的遗产和智慧。对之进行创造性转化,于当代司法的进一步完善,必大有裨益。